SMU Law Review

Volume 52


Legality and Morality in H.L.A. Hart's Theory of
Criminal Law
Hamish Stewart

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Recommended Citation
Hamish Stewart, Legality and Morality in H.L.A. Hart's Theory of Criminal Law, 52 SMU L. Rev. 201 (1999)

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Hamish Stewart*

I. INTRODUCTION ........................................



TO OFFENDERS ........................................




THE SIGNIFICANCE OF MENS REA .....................
THE RECOGNITION OF EXCUSES .......................
A CONCEPT OF CRIMINAL LAW? . . . . . . . . . . . . . . . . . . . . . .

III. THE HART-DEVLIN DEBATE .........................
V . CONCLUSION ...........................................






Hart is best known for his Concept of Law,1 a powerful

work that fundamentally changed the course of jurisprudential
analysis in the common law world. 2 But Hart also made significant contributions to the analysis of two particular areas of Anglo-American law. One of these areas, the criminal law, is the subject of this
* Associate Professor, Faculty of Law, University of Toronto. B.A., University of
Toronto; Ph.D., Harvard University; LL.B., University of Toronto. I am extremely grateful
to my colleagues David Dyzenhaus and Denise RJaume for reading a draft of this Article
on very short notice. They both know more about Hart than I do and so saved me from
several errors; they are not responsible for the errors that remain.
1. H.L.A. Hart, THE CONCEPT OF LAW (2d ed. 1994). The first edition appeared in
1961; the second edition includes the addition of a "Postscript" in which Hart responds to
certain criticisms. See id. at 238-76.
2. For descriptions of the book's impact, see WILLIAM TWINING, LAW IN CONTEXT

165-69 (1997) and NEIL MACCORMICK, H.L.A. HART 3-6 (1981).
3. The primary texts for this purpose are H.L.A. HART, PUNISHMENT AND RESPONSIBILITY (1968) [hereinafter HART, PUNISHMENT] and H.L.A. HART, LAW, LIBERTY, AND
MORALITY (1963) [hereinafter HART, LAW]. See also H.L.A. HART, ESSAYS ON BENTHAM
(1982) [hereinafter HART, ESSAYS]. I do not consider his earliest paper on criminal law
because he later repudiated it. See H.L.A. Hart, The Ascription of Responsibility and
Rights, 49 PROC. ARISTOTELIAN SOC'Y 171 (1948-49); HART, PUNISHMENT, supra, at V.
Hart's other primary substantive contribution, which I do not discuss here, was his analysis
of legal cause. See H.L.A. HART & TONY HONORS, CAUSATION INTHE LAW (2d ed. 1985).


[Vol. 52

Hart's account of the nature of law was both positivist, in that it insisted on a strict separation between positive law and law as it ought to
be, and rule-oriented, in that the rule-like nature of law was an essential
feature of what law is. But his writings on criminal law strongly advocate
certain normative positions. While there is no necessary contradiction
between these two groups of writings, in that each belongs to a different
mode of analysis, the juxtaposition of Hart's criminal law writings with
his jurisprudential writings casts doubt on the separation between law
and morals.
Hart's work on criminal law may be usefully divided into two categories. The first is his analysis of certain basic criminal law concepts such as
responsibility and fault. 4 The second is his discussion of the proper relationship between criminal law and morality. 5 In both categories, Hart
argues that criminal law is, and should be, rule-like, so that it can both
govern and address the behavior of human agents. Hart's criminal law
writing thus offers a substantive, normative account of the reasons for
having rules in criminal law. The substance of that account we may call,
following Fuller, "legality": 6 the rule-like nature of law is not just a defining feature of law but has normative force in its own right. If this is truly
Hart's position, then there are two possibilities: either Hart has uncovered an incredible coincidence between law as it is and law as it should
be, or Hart's jurisprudential claim that law is categorically distinct from
morality is not sustainable.


Theories of punishment may be broadly classified as utilitarian or retributivist. Utilitarian theories justify punishment by pointing to its beneficial consequences: punishment, which in itself produces disutility, is
justified if the harm avoided through deterrence outweighs the harm inflicted upon offenders. 7 Retributivist theories justify punishment without
reference to consequences by connecting punishment with some normative quality of the offender's actions, usually an intentional rights violation. 8 The two approaches seem utterly incompatible, in that the
4. See

5. See


supra note 3.

HART, LAW, supra note 3.
6. See LON L. FULLER, THE MORALITY OF LAW 157-58 (1964).

The classic utilitarian account of punishment is JEREMY BENTHAM, AN INTRODUC-

eds., Athlone Press 1970) (1780). Those modem theories of punishment that are oriented
towards the prevention of harm may be understood as descendants of Bentham's account.
See JOEL FEINBERG, HARM TO OTHERS (1984); Richard A. Posner, An Economic Theory

of the Criminal Law, 85 COLUM. L. REV. 1193 (1985). For a review and discussion of
modem utilitarian theories, see C.L. TEN, CRIME, GUILT AND PUNISHMENT 7-37 (1987).
8. The classic retributivist accounts of punishment are IMMANUEL KANT, THE METAPHYSICS OF MORALS 331-37 (Mary Gregor trans., Cambridge Univ. Press 1991) (1797) and

G.W.F. HEGEL, PHILOSOPHY OF RIGHT 1% 90-102 (T.M. Knox trans., Oxford Univ. Press
1952) (1821). It is a little hard to find a whole-hearted modem advocate of retribution;
Hart's own articulation of a retributivist position includes no references to modem scholars. See HART, PUNISHMENT, supra note 3, at 230-37. But see ALAN BRUDNER, THE

Id. see TEN. at 12. Hart offers the following alternative to viewing criminal punishment as purely consequentialist or purely utilitarian: [I]t is perfectly consistent to assert both that the General Justifying Aim of the practice of punishment is its beneficial consequences and that the pursuit of this General Aim should be qualified or restricted out of deference to principles of Distribution which require that punishment should be only of an offender for an offence. Hart cites John Rawls. Two Concepts of Rules. is undoubtedly Hart's own.1999] LEGALITY AND MORALITY consequential effects of punishment are central for utilitarianism and irrelevant for retributivism. at times seeming almost retributivist. . in his view.. 9 This view. REV. at 11. Hart argues that his view can account for central features of criminal law doctrine more successfully than retributivism or utilitarianism.disguised forms of Utilitarianism ' 12 and that they cannot adequately account for the role of strict liability in regulatory offenses. supra note 3. it would not explain why. . which Hart sees as central to understanding criminal responsibility: "Will enforcing [the laws] produce more good than evil? . "[O]ur main social institutions always possess a plurality of features which can only be understood as a compromise between partly discrepant principles. 15. For a review and discussion of retributivist 7. 13 But Hart maintains that utilitarianism does not explain the standard restriction of punishment to those who have actually offended. HART. supra note 3. But near the beginning of Punishment and Responsibility.. while the second adverts to non-utilitarian standards of justice in individual cases. PUNISHMENT. the utilitarian aim always comes out better." Id. On this point. Id.' More importantly. The first question adverts to Hart's utilitarian General Justifying Aim. 12. This point may be seen again in the following pair of questions.' Hart's advocacy of this view can be seen in a number of ways. He argues that retributivist views "either avoid the question of justification [for punishment] altogether or are . at 9. supra note 213-40 (1995). 9. at 39. 10. Whenever he contrasts a retributive with a utilitarian aim. . on utilitarian grounds. that the establishment of an institution whose purpose would be to punish the innocent could never be justified. if we did choose to punish an innocent. 11.Is it right or just to punish this particular person?" Id. at 10. 3. where Rawls argues. He argued that although the General Justifying Aim of punishment is utilitarian. See id." one which is not itself "only a 15 requirement of utility. 54 PHIL. "we should do so with the sense of sacrificing an important 38-65. at 9. 13. 14. at 236. 10 Yet Hart sees no contradiction here. the principles of liability are not always consistent with utilitarianism. Although some "sufficiently comprehensive utilitarianism"' 4 might do so. PUNISHMENT. the broadly utilitarian aim of punishment is not undermined by the non-utilitarian features of criminal law doctrine because utility is not the only value important to a system of criminal justice. 4-13 (1955). The restriction of punishment to those who have actually UNITY OF THE COMMON LAW theories. HART. initially presented only as a possibility.

17. 16. Id. 48 MIND 152 (1939)). at 113-57. Mabbott.D. For Hart."' 21 This principle is supported by at least three considerations. at 207. See id. it reflects a very basic idea of fairness. supra note 8. See id. and persons do not view themselves or each other merely as so many bodies moving in ways which are sometimes harmful and have to be prevented or altered. 24. at 181."' 20 In other words. . 181. as this move "fail[s] to satisfy the advocate of 'Retribution"' and prevents meaningful comparison of the system of criminal punishment with "other forms of social hygiene which we might employ to prevent anti-social behaviour. 18. see also id. 22. at 5-6 (citing J. 16 the significance of mens rea. PUNISHMENT. Id. as opposed to a legal world where liability is not so limited. supra note 3.SMU LAW REVIEW [Vol. 22 which. are united in Hart's view by an underlying vision of the nature of human society: Human society is a society of persons. Id. at 6. see also BRUDNER. See id. a central constraint on carrying out the General Justifying Aim is that the state cannot use a person for the benefit of society unless he or she "could have avoided doing what he did. though Hart does not say so. See id. in that they fail to offer adequate reasons for not punishing the innocent. sounds like a classic retributivist ideal. In a legal world where criminal liability is limited by a principle of responsibility. The bulk of Hart's writing on criminal law is devoted to discussion of these three points. RESPONSIBILITY: THE RESTRICTION OF PUNISHMENT TO OFFENDERS Retributivists claim that utilitarian theories of punishment fail to accord with strongly-held moral intuitions about the criminal law. First. Punishment. at 182."' 24 But all three of these ideas. where punishing the innocent would create a net gain in utility. and I will consider each of them in turn. see also id. whether we identify each of them individually as retributive or utilitarian. ' 23 and we "foster the prime social virtue of self-restraint. noting that it cannot be overcome merely by arguing that punishment of the innocent is not really punishment. at 251-52. HART. at 181-82. 23. we enhance the individual's ability to plan by "maximiz[ing] his power to identify in advance the space which will be left open to him free from the law's interference. 20. at 158-209. A. The other two considerations are more prudential.' 9 Hart treats this objection seriously. Hart must show that basic criminal law principles that appear most naturally justified by retributive theory are compatible with utilitarianism. to walk the middle path between retributivism and consequentialism. 19. at 39. 21. Instead persons interpret each other's movements as manifestations of intenSee id. 52 committed offenses. 17 and the recognition of excuses 18 all have a role to play in a theory whose overall purpose is utilitarian. at 28-53. at 76.

As we will see. R. the actor ought to have known that his or her conduct would result in death or injury. but as a system of rules that addresses itself to human beings and gives them reasons for the choices they make. Id.1999] LEGALITY AND MORALITY tion and choices. If this is utilitarianism. and the energy directed at explaining their significance. The Queen v. and these subjective factors are often more important to their social relations than the movements by which they are manifested or their effects .. seems mysterious from a utilitarian point of 25. the distinction has achieved constitutional status. at 50-51. 169 (1985).. In Canada.R. e. he sees the criminal law not merely as a set of incentives or a means of social control. the actor was aware that his or her conduct created an unjustified risk but proceeded anyway. it is a utilitarianism tempered by a non-utilitarian understanding of human interaction.g. Hart sees individual human beings not as mere sites for utility or as automatons to be controlled by incentives. 633. THE SIGNIFICANCE OF MENS REA The distinction between acting with fault and acting without fault is fundamental to the criminal law..C. Amartya Sen. PHIL. B. curable or 25 manipulable things. 27. A modem form of utilitarianism that is also attentive to human agency in a way that classical utilitarianism was not has been developed by Amartya Sen..C. her otherwise innocent conduct culpable). the actor was aware of or willfully blind to a circumstance). See The Queen v.C. Not only is liability without fault alien to the criminal law.. Agency. 27 sometimes recognizing a lesser offense for one acting with objective fault only. Well-being. 2 6 more importantly. Many jurisdictions draw the distinction between murder and manslaughter on this basis. I will use "liability without fault" to refer to the imposition of liability without proof of any form of fault. this conception of the criminal law is closely connected with Hart's larger jurisprudential project. I will use the term "objective liability" to refer to the imposition of liability where the actor ought to have been able to avoid committing the actus reus (e. choosing agents. predictable. but the doctrine frequently distinguishes between subjective and objective forms of liability. at 182-83. 28 at other times insisting on subjective fault for there to be any liability at all. C-46. 29. This form of liability is called "strict" in some jurisdictions and "absolute" in others. 3. 29 The importance attached to these distinctions. ch. § 322 (1985) (Can.). See ESSAYS. and Freedom.S. This it would fail to do if it treated men merely as alterable. the actor knew that his or her conduct would cause death. it is surely even more important that it should in general reflect in its judgments on human conduct distinctions which not only underly morality. Creighton [19931 3 S.. Theft is often defined so that a merely negligent deprivation of a property right is no offense at all. but pervade the whole of our social life. I will use the term "subjective liability" to refer to the imposition of liability only when the actor adverted in some way to the actus reus (e. 26.g.. If as our legal moralists maintain it is important for the law to reflect common judgments of morality. THE STANDARD OF LIVING 1-38 (1987). Consequently. 28. See. 82 J. To avoid confusion. Compare Hart's contrast between Beccaria's and Bentham's utilitarianism. . it is a utilitarianism of a very broad and undogmatic variety. the actor ought to have recognized a circumstance that would make his or HART. supra note 3.R. but as purposive. See AMARTYA SEN. Martineau [19901 2 S. Criminal Code.g.

one would expect a retributivist to oppose punishment for negligence and a utilitarian to welcome it. intending a consequence should be understood to include not just desiring the consequence (direct intention) but acting with knowledge of the consequence (oblique intention). He traces the significance of subjective fault for liability 33 and for the quantum of punishment. if the criminal law has the General Justifying Aim Hart attributed to it. 31. PUNISHMENT. PRINCIPLES OF CRIMINAL LAW (1947) 169-246. if it is effective in deterring harmful behavior. Presumably. Hart first distinguishes between "inadvertence" and "negligence. 36. 34 He then goes to some length to establish that. 31 Hart attaches great significance to the distinction between subjective fault. . at 115-16. See HART. 38 Rather than seeing liability for negligence as a regrettable departure from principle or as a special form of liability appropriate only in the regulatory context. The law's failure to make this distinction. Because liability for negligence entails punishment for consequences that the actor did not intend or foresee. 38. then the proper standard of fault should be the one that most effectively deters anti-social conduct." He suggests that negligence "refer[s] to the fact that the agent failed to comply with a standard of conduct with which any ordinary reasonable man 30. Rather. but arguing that "the law acts wisely in making such punishment exceptional"). 35. For such an account. see Posner.SMU LAW REVIEW [Vol. on the other hand. Hart's theory of fault is not utilitarian.A. objective fault. Hart's central discussion of the relationship between intention and criminal liability 32 is conducted apart from the question of the General Justifying Aim of punishment. See id. Hart sees it as having a central role in the criminal law. . supra note 3. The Queen v. at 235-40. Hibbert [1995] 2 S. See JEROME HALL. 30 But this is not Hart's view. at 127. should provide some such evidence. and as such has a very different attitude towards penal negligence than writers such as Hall 37 or Brudner. supra note 3. Hart is fundamentally a utilitarian rather than a retributivist. 34. Now. See GLANVILLE WILLIAMS. therefore. 52 view. provides no evidence for or against a utilitarian or a retributivist theory of liability or of punishment.R. See id. 35 He then asks whether "any intelligible theory of punishment . supra note 8. 973. Punishment for negligence. AGENCY AND CRIMINAL LIABILrrY 15-135 (1990). CRIMINAL LAW: THE GENERAL PART 122-24 (2d ed. 1961) (offering a deterrent justification for imposing penal liability for negligence. 256-57. The irrelevance of the distinction between direct and oblique intention is now quite commonly accepted. DUFF. 32.C. 33. and liability without fault. See R. for the purposes of criminal liability. See BRUDNER. supra note 7. 37. Although he defends objective fault in a way that Williams would not. at 113-35. See id. at 116-22. like his subjectivist contemporary Glanville Williams. PUNISHMENT. would make sense of this distinction" 36 and concludes that the distinction could not be justified on either utilitarian or retributive grounds. HART. . INTENTION. 279-322 (criticizing the use of objective forms of liability in criminal law). at 114-15.

Fletcher.R. for example. it refers rather to the state of mind of not adverting to the consequences or risks of one's actions. Suppose that in each case Pete's and Paula's speed is a but-for cause of the collision. Inadvertence may. HART. It is plausible to assume that people who are indifferent to consequences are less likely to meet the standard of care. and thus to isolate the factor that relieves Pete of liability. or the accused may form a mistaken belief about the risk or the consequences. of course. . that there is personal injury to the driver of the other vehicle. 40. at 148. negligence is not determined by what is in the mind of the agent. but by what the agent does or fails to do: one can be negligent with or without inadvertence. each is driving on a highway and strikes a vehicle that is making a right-hand turn onto the road.C. inadvertence does not necessarily refer to a failure to fall below a standard of care. 157. Paula may be at fault. Creighton [1993] 3 S. that neither Pete nor Paula consciously adverted to the risks entailed by their speed. 48 U. PUNISHMENT. one can be inadvertent with or without being negligent.supra note 35. See DuFF. Hart argues further that negligent conduct should not be criminally punishable unless the accused both failed to meet the relevant standard of care and had the capacity to meet the standard of care. while Paula exceeded the speed limit by twenty miles per hour. but Pete was con41 forming to a standard of care and Paula was not. see also George P. The Meaning of Innocence. lead to a failure to take reasonable precautions and thus to negligence. there is no difference between Pete's and Paula's state of mind. 42 That is. Suppose that both Pete and Paula get into (separate) motor vehicle accidents that are causally related to their speed. ToRoNTo L. It may be objected that this example is implausible. In these cases. but Pete probably is not."' 39 In contrast.' Thus. one might say that advertence. 172-73 (1998). Id. See The Queen v. rather than inadvertence. or in the mind of some hypothetical reasonable agent. supra note 3. one can advert. but "the negligence does not consist in this blank state of mind but in our failure to take precau'40 tions against harm by examining the situation. negates liability for offenses of negligence. or meeting the relevant standard of care. at 147-48. Taking precautions. But suppose that Pete was driving at the speed limit. should the risk materialize. and yet be negligent: the accused may underestimate the risk or the seriousness of the consequences. 41. On the other hand. 62-3. 42. 43. produces negligence. at 175. in that I have assumed that Pete is indifferent to the consequences of his driving but nonetheless meets the standard of care. for whatever reason. and that neither Pete nor Paula cares whether his or her driving injures another. but the purpose of the example is to reinforce Hart's point that negligence and inadvertence are not the same thing.1999] LEGALITY AND MORALITY could and would have complied: a standard requiring him to take precautions against harm. 43 To punish someone whose reason for departing from the standard of care was inca39. regardless of the state of the accused's mind. Hart's argument on this point was invoked by both the majority and the minority in a recent leading Canadian case on penal negligence.J. 3 at 25.

this form of criminal liability can plainly be justified on utilitarian grounds: Hart suggests that it has a role in making people advert to risks caused by their conduct. but from the refusal in the application of this principle to consider the capacities of an individual who has fallen below the 44 standard of care. 45. provided that liability is imposed not simply for departure from a standard of care. The fault is thus located not simply in the departure from the relevant standard of care. might therefore be compatible with some forms of retributivism as well as with utilitarianism. at 152-55. at 134. and (iii) the accused could have met (had the capacity to meet) the standard of care. supra note 3. PUNISHMENT. See DUFF. Thus. But this departure is only a necessary and not a sufficient condition for liability. at 156. though it is a different sort of fault. 52 pacity to live up to the standard would be to impose liability without fault: 'Absolute liability' results. and to convict on proof of (i) and (ii) only would be to impose absolute liability. if not exactly retributivist. just as the actus reus of a crime of intention is necessary but not sufficient. Hart's theory of liability for criminal negligence. HART. require an attention to human agency quite alien to utilitarianism.SMU LAW REVIEW [Vol. is significantly constrained by values which. 44. See id. (ii) the accused departed markedly from that standard of care. The fault element is in the third component: the accused failed to meet the standard when he could have. interpreted in this way. . There is a sense in which this standard of liability is just as subjective as a requirement of intention or advertent negligence: the accused's liability ultimately depends as much on his or her capacities as on his or her conduct. 47. 47 But Hart also wants to say that it is not unfair to impose criminal liability for negligence. Thus. the departure is not in itself a fault element. It is true that the standard of care is objectively defined. 46. but in departing from that standard even though the accused was capable of meeting it. though utilitarian in its basic thrust. Hart's point may be recast as follows. The fault element in crimes of negligence is often said to be that the accused ought to have met the standard of care that the reasonable person would have met. this type of fault is as "subjective" as 45 full mens rea. at 154-55. and that the accused's departure from that standard may be externally observed. not from the admission of the principle that one who has been grossly negligent is criminally responsible for the consequent harm even if 'he had no idea in his mind of harm to anyone'. However. this statement needs to be broken down into three distinct components: (i) the reasonable person would have observed the appropriate standard of care. Liability for negligence. PUNISHMENT. supra note 35. supra note 3. Now. See HART. Hart justifies a form of objective 46 liability with reference to a subjective characteristic of the accused. but for a departure that the agent could have avoided.

tempers the overall utilitarian aim of the law with other considerations. but leaving them to choose. See BENTHAM. like his approach to fault requirements." 51 In this light. Id. unless there is some empirical proof that the harm caused by this sort of fakery is less than the harm caused by punishing the innocent. . the rationale for excuses cannot be Bentham's straightforwardly utilitarian one. He begins with Bentham's utilitarian argument for excuses.. HART. maximizing within the framework of coercive criminal law the efficacy of the individual's informed and considered choice in determining the future and also his power to predict that future. The first class consists of cases in which the penal threat of punishment could not prevent a person from performing an action forbidden by the law or any action of the same sort. at 46. many people who now take a chance in the hope that they will bring themselves. Bentham argued that punishment was wrong where48it was inefficacious and that it was inefficacious in two classes of cases. So. punishing the insane. within these exempting provisions would in fact be deterred. But.... In particular. mistake. The uselessness of a threat against a given individual or class does not entail that the punishment of that individual or class cannot be required 50to maintain in the highest degree the efficacy of threats for others. as what might be termed a choosing system. Hart points out. The fact that the threat of punishment would not have deterred the particular individual does not mean that punishing him or her will not have beneficial social effects. or insanity. ' 53 A criminal law excuse is then best understood as "a mechanism for . Id. at 19-20. 54. supra note 7. Id. or necessity: It may very well be that. . at 44. PUNISHMENT. 50. THE RECOGNITION OF EXCUSES Hart's approach to excuses.. The second class consists of cases in which the law's threat could not have had any effect on the agent in relation to the particular act committed be49 cause of his lack of knowledge or control. this argument contains a serious non sequitur.1999] LEGALITY AND MORALITY C. the criminal law appears less as a "system of stimuli" or a goad 52 than as a system that "guide[s] individuals' choices as to behaviour by presenting them with reasons for exercising choice in the direction of obedience. at 43. if the law contained no explicit exemptions from responsibility on the score of ignorance. the incapable. 49. Hart proposes instead that we understand the function of excuses by "consider[ing] the law. see also id. Id. at 41. .. '54 Although the function of criminal law as a system 48.. accident. 51. if discovered. 53. supra note 3. Id. 52. 77. or the necessitous may have the effect of deterring others from faking insanity. . incapacity. at 161-62.

See id. 52 may be to impose "at least some check on behaviour that threatens society. or to stand as a description of the central features of actually existing Anglo-American criminal law? In other words. Hart adopts a vision of the criminal process in which the general utilitarian aim of the system is significantly constrained by the nature of law as a system governing the behavior of choosing agents. 57. it is fairly Id. the understanding of mens rea. Fletcher treats Hart's theory of excuses as part of a normative theory of justice. Individual freedom is enhanced. in the analysis of excuses. at 28-30. RETHINKING CRIMINAL LAW 802-03 (1978). 60 and subsequent commentators have not unnaturally treated these writings as demonstrating Hart's commitment to certain substantive 210. it respects the personhood of the human beings whom the system is designed to serve: On this view excusing conditions are accepted as something that may conflict with the social utility of the law's threats. SeeHART. 60. 6 1 At the same time. in that individuals will not be liable for criminal consequences that they could not have helped causing. or at least as a choosing being. they are regarded as of moral importance because they provide for all individuals alike the satisfactions of a choosing system. 58 Thus. 58. MacCormick describes Hart's work on 55. rather than as a description of any existing system of law. 56. at 49. 61. See id. and the function of excuses-Hart sees the overall utilitarian aim of criminal law as constrained by principles deriving from the importance of preserving a space for individual freedom of action. Recognition of excusing conditions is therefore seen as a matter of protection of the individual against the claims of society for the highest measure of protection from crime that can be obtained from a system of threats. is Hart's criminal law project critical. at 44. 59.SMU LAW REVIEW [Vol. or descriptive? It is most natural to understand Hart's project in his writings on criminal law as being in a critical mode. at 47. D. as in the analysis of responsibility and fault. See GEORGE FLETCHER. In this way the criminal law respects the claims of the individual as such. PUNISHMENT. to offer us a method of distinguishing criminal law from other sorts of law. supra note 3. 59 But does Hart mean this discussion of criminal law to offer us a vision of a desirable system of criminal law. and distributes its coercive sanctions in a way that reflects this respect for the individual. 56 Although the recognition of criminal law ex57 cuses may well lead to some cost in the efficacy of law enforcement. Hart outlines an approach to criminal law that he evidently regards as desirable. . Similarly. A CONCEPT OF CRIMINAL LAW? In three critical areas of the criminal law-the role of responsibility. 233. analytical. 49." 5 5 recognition of excuses provides the same sort of advantages as insistence on fault requirements. See id. Id.

homosexual acts between consenting adults should not be subject to criminal sanctions. Nazi Germany. the distinction he draws between the rules of criminal law and mere goads to conduct is the same as the distinction between law as a system of rules and law as orders backed by threats. Hart's account of criminal law offers us a 63 concept of criminal law. 68. if not immoral attitude toward the criminal law. PUNISHMENT. See MACCORMICK. Id. 62. As I will show below. THE HART-DEVLIN DEBATE In 1957."' 65 He then adds: This . at 53 (restricting his analysis to legal. $1 62-72. Hart suggests that one justification for excusing conditions is that "if the sanctions of the criminal law are applied. PUNISHMENT. See HART. Denise RJaume suggested that I put my point this way. Hart plainly states that his discussion of basic criminal law principles is as relevant to repugnant legal systems as to his own. 65. 66. with HART.6 2 That is. 63. the Wolfenden Committee made a number of recommendations in relation to the law of sexual offenses in England. But before turning to that jurisprudence. at 3841. see also id. 1 do not mean to suggest that these commentators are in error. at one point. the rule-like nature of the criminal law is not just desirable but a defining feature of what the law is. 355. the pains of punishment will for each individual represent the price of some satisfaction obtained from breach of law. To be realistic we must also think of bad and repressive criminal laws. In other words. in South Africa. at 44. supra note 3. But this attitude seems repellent only if we assume that all criminal laws are ones whose operation we approve. See COMMITTEE ON HOMOSEXUAL OFFENCES AND PROSTITUTION. supra note 2.. supra note 3. Id. 64. 64 In a rather utilitarian mode of analysis.can sound like a very cold. but Hart's analysis of criminal law presents itself more as a descriptive account than appears at first sight. 67 Its most important recommendation was that private. Compare HART. supra note 1. not moral.. I consider Hart's other main contribution to the criminal law: his position on the relationship between criminal law and morality. 1957. Indeed.. THE WOLFENDEN REPORT.LEGALITY AND MORALITY 1999l clear that these writings do not simply describe any particular legal system. Soviet Russia and no doubt elsewhere. at 10. 247 [hereinafter WOLFENDEN REPORTI. cmt. general obedience to which we regard as an essential part of a decent social order. III. responsibility). 68 Patrick criminal law as favoring a certain type of liberalization. But the basic vision underlying Hart's criminal law project is closely linked with his understanding of what law is. at 53. 67. . we might be thankful to have their badness mitigated by the fact that they fall only on those who have obtained a satisfaction from knowingly doing what they forbid. at 47. See id. for Hart. 55-60. 6 6 This qualification would surely not be necessary if Hart's criminal law project were not meant to be consistent with his positivist jurisprudence.

71 YALE L. Eugene Rostow. at 15-17. 38 N. LAW. ESSAYS IN JURISPRUDENCE AND PHILOSOPHY 248-62 (1983) [hereinafter HART. H. 662 (1961) (book review) (supporting Hart). public sense of morality. See Offences Against the Person Act. 71 Hart's response to this lecture. THE ENFORCEMENT OF MORALS 1-25 (1965). Devlin was concerned with the relationship between morality and the criminal law. 52 Devlin. and ethics no society can exist. as a matter of positive law. Morality and the Criminal Law. 70. Book Review. at 4. Id. J. Sexual Offences Act. Alan W. 45 PROCEEDINGS OF THE BRITISH ACADEMY 1 (1959).222-27 (1962) (criticizing Devlin). Morals and the Criminal Law. Robert S. Whereas the Wolfenden Committee had expressed the view that private immorality was not the business of the criminal law. LAW. 7 1 The debate concerned. CRIMINOLOGY 283 (1964) (book review) (supporting Hart). 60. 174 (1960) (supporting Devlin). at its broadest. L. See generally HART. would not be good for the moral law and might be disastrous for the criminal" 72 and noted that. HART." but this source is no longer legitimate. The Enforcement of Morals. 4 BRIT. REV. 2. AND RELIGION IN A SECULAR SOCIETY (1967) (analyzing the debate and cautiously supporting Devlin). Devlin argued that "a complete separation of crime from sin . 100. and the English law of sodomy 6 9 in particular. 73. 1967. If men and women try to create a society in which there is no fundamental agreement about 69. Summers. 74. it is often the case that the criminal law functions "to enforce a moral principle and nothing else. supra note 70. H.U.L. 1will cite the lightly revised version of the lecture in PATRICK DEVLIN. 1956. and. delivered a lecture defending the criminalization of immoral conduct in general. supra note 70. 1960 CAMBRIDGE L. . against the Wolfenden Committee's recommendations. without shared ideas on politics. ch.4 & 5 Eliz. 1201 (1963) (reviewing H. the proper role of the criminal law in a democratic society.J. are compendiously known as the Hart-Devlin debate. AND MORALITY) (1963) (supporting Hart). and the subsequent exchanges between Hart and Devlin together with the observations of other commentators.A. supra note 3. TORONTO L. § 1 (Eng). '74 Where.).. does the law get its authority to criminalize immoral conduct? Devlin argued that there is a shared. Graham Hughes. most narrowly.SMU LAW REVIEW [Vol. HART. MORALITY. Mewett. Devlin's objection to the Wolfenden Committee's recommendations regarding homosexual offenses was based on his view of society's right to criminalize conduct that it regards with abhorrence.. a judge of the Court of Queen's Bench and later a Law Lord.. BASIL MITCHELL. 72. ch. HART. The Enforcement of Morals.). DEVLIN. J..J. See id. ESSAYS IN JURISPRUDENCE]. the wisdom of seeking to enforce morality through the criminal sanction. Law and Morals. DEVLIN. 71.A. LAW. Id.L. MORALITY AND THE CRIMINAL LAW 31-54 (1965). at 7.A.. 69 §§ 12-13 (Eng. more broadly. § 61 (Eng. ch. and that the maintenance of this sense of morality is essential to the cohesion of society: [S]ociety means a community of ideas. 1861.Y. 14 U. morals. 24 & 25 Vict. 213. the wisdom of criminalizing certain forms of sexual behavior.. then. Sexual Offences Act."' 73 The historical source of this moral function of the criminal law may be "Christian teaching. Morris Ginsberg. because "the law can no longer rely on doctrines in which citizens are entitled to disbelieve. Patrick Devlin. LIBERTY.L.

Id. Id. it must be recognized that "[t]he limits of tolerance shift" 8 2 so that immoral conduct need not remain criminalized indefinitely. the almost visceral reaction of the ordinary person to such conduct is central to maintaining the bonds of society and thus to the use of the criminal sanction in enforcing morality: I do not think that one can ignore disgust if it is deeply felt and not manufactured. . at 17. 78 In Devlin's view. Id. say. 8 l second. 78. if. Id. 76. Id. could limit the public enforcement of morality where the public feeling for enforcement is strong enough. at 11. and fornication. in itself or taken with the others. '8 3 But none of these principles. but expressed through "the power of common sense" as expressed in abhorrence of certain conduct such as "deliberate cruelty to animals. at 18. 84 75. "[t]here must be toleration of the maximum individual freedom that is consistent with the integrity of society". 84. Thus. and third. the feelings of society cannot 79be weighty enough to deprive the individual of freedom of choice." Id. having based it on common agreement. at 16. Not everything is to be tolerated. indignation. the agreement goes. but merely on an ad hoc balancing of "the pros and cons of legal enforcement in accordance with the sort of considerations I have been outlining. in Devlin's view.1999] LEGALITY AND MORALITY good and evil they will fail. 81. 77 Furthermore. No society can do without intolerance. First. it is held by the invisi75 ble bonds of common thought. 77. and indeed it can be argued that if they or something like them are not present. the society will disintegrate. 83. at 22. and disgust. From this sense of the role of morality flowed the justification for punishing immorality: If "a recognized morality is as necessary to society as."'76 The public enforcement of morality through the criminal law is no different in principle from the protection of the state against violent overthrow through the law of treason. the content of this morality is not determined by some rational process. Devlin did admit that there were at least three "elastic principles" 80 that would limit the operation of the criminal law on immoral behavior. Id. See id. Its presence is a good indication that the bounds of toleration are being reached. at 10. they are the forces behind the moral law. the failure of the criminal law to include adultery and fornication in its scope does not rest on a logical or principled preference for freedom or privacy over the protection of society. "as far as possible privacy should be respected. Id. 79. For society is not something that is kept together physically. a recognized government. 80. then society may use law to preserve morality in the same way as it uses it to safeguard anything else that is essential to its existence. Id. at 13. 82." homosexual acts.

in a broad sense. 89. at 8-9. 90. DEVLIN. 88 Hart suggested that the legal moralist had simply failed to distinguish between two "distinct and independent questions": "'What sort of conduct may justifiably be punished?' and 'How severely should we punish different offenses?"'' 89 The question of whether the law should enforce morality relates to the first. at 27. supra note 70." FEINBERG. LIBERTY. at 6. Where Devlin argued that criminal law rules excluding consent as a defense could only be explained as instances of the enforcement of morality. supra note 3. Where a legal moralist would argue that the morality-enforcing function of criminal law could be seen in the role that an offender's moral worth plays in sentencing. supra note 3. at 130. on the grounds that such actions constitute or cause evils of other ('free-floating') kinds. because he argued that it was "morally legitimate for the state to prohibit certain types of actions that cause neither harm nor offense to anyone. supra note 3. supra note 70. 8 7 The paternalistic explanation would be a straightforward invocation of the harm principle rather than an instance of society defending its very existence against an immoral act. See DEVLIN. not to Devlin. 8 6 Hart noted that they could also be explained as instances of the law's paternalism." see HART. FRATERNITY 162-63 (R. be something which jeopardizes a society's existence. For Hart's use of the term "legal moralism. Hart first took Devlin and other supporters of a morality-enforcing function for criminal law to task for not drawing certain elementary distinctions about the functioning of criminal law. 90 These distinctions are critical for a utilitarian approach to criminal law because the infliction of punishment causes harm. supra note 3. supra note 3. 1874). White ed. HART. but Devlin subsequently adopted it. at 36. LAW. see supra note 70. at 132-37 (doubting whether a firm distinction between legal moralism and paternalism can be sustained). LAW. supra note 7. This summary. 87. that is. utilitarian. LAW. at 18-19. See HART. . the law might be intended to protect persons from harms caused by their acting against their own best interests rather than to protect society from the breaking down of morality. the question of whether an offender's moral worth should influence his or her sentence relates to the second. 52 Hart summarized Devlin's position as follows: Lord Devlin bases his affirmative answer to the question [of criminalizing immorality] on the quite general principle that it is permissible for any society to take the steps needed to preserve its own existence as an organized society. Hart attributed this argument to Stephen. and he thinks that immoralityeven private sexual immorality-may. DEVLIN. 86. at 32-33. For Devlin's response on this point. Cambridge Univ. Hart's response to Devlin's position was. 85like treason. is not unfair. The possibility of a paternalistic justification for a rule of criminal law and the distinction between the justifi85. though hardly intended to put Devlin's position in a favorable light. HART. LAW. Press 1967) (2d ed. LAW. See HART. at 37.SMU LAW REVIEW [Vol. at 34-36. EQUALrrY. for a utilitarian punishment must be justified by the avoidance of some greater harm (or the provision of some greater benefit).. 88. Devlin was a legal moralist not only in Hart's sense but in Feinberg's "broad sense" as well. See id. see also JAMES FITZJAMES STEPHEN.J.

The central mistake is a failure to distinguish the acceptable principle that political power is best entrusted to the majority from the unacceptable claim that what the majority do with that power is beyond 91. "no indication is given of the kind of evidence that would '95 support it. Either we cannot speak of the morality of a society as having changed. at 13 n. but in the absence of proof that it does. LAW. but the mere fact that some have departed from this morality. For Devlin's response to this particular point. even by adults in private. Id. See HART. see also HART. 91 "[N]o evidence is produced to show that deviation from accepted sexual morality. 94. Id. supra note 71. at 260. 96." '9 2 Neither historical evidence 94 nor social-psychological evidence supports the disintegration thesis. supra note 3. The conservative thesis means one of two things. supra note 70. '96 On this view. at least on its own terms.. '97 This non-utilitarian claim does not rest on any evidence about the effects of failing to enforce sexual morality and is. the harm caused by the failure to enforce a common sexual morality is not the disintegration of society as such. at 51. at 69-80. at 261. supra note 3. threatens the existence of society. LAW.. See id. The first is simply "absurd. Id.1999] LEGALITY AND MORALITY cation for and the quantum of punishment both create room for a utilitarian explanation of the criminal law's apparent moralism. See id. at 249. 95. 97. From a utilitarian perspective. nor is any sensitivity betrayed to the need for evidence. 93. the thesis that a society that fails to enforce sexual morality through the criminal law will tend to fall apart. at 51-52. immune from the criticism that it is insufficiently supported by evidence. see DEVLIN. Second. but collapses into the "conservative thesis. 98. at 250. 92. . 98 or we cannot criticize the moral views of the majority. at 50. what is worse. ESSAYS IN JURISPRUDENCE. 99. therefore. 100." u0 0 while the second offers an impoverished conception of what it means to live in a democracy. see also HART. is something which. See id.1. The conservative thesis "is the claim that society has a right to enforce its morality by law because the majority have the right to follow their own moral convictions that their moral environment is a thing of value to be defended from change. like trea93 son. ESSAYS IN JURISPRUDENCE. See HART. Id. supra note 71. Hart challenged Devlin to provide some evidence for what Hart calls "the disintegration thesis. this sort of punishment must be seen as the wanton infliction of pain. the absence of evidence is evidently a serious problem: the infliction of punishment for sexual immorality might well be justified if such punishment could keep society together. at 49 (calling this view "the extreme thesis"). See id." that is. 99 Both of these positions are unacceptable to Hart. Hart takes Devlin's lack of attention to the need for evidence to indicate that Devlin's disintegration thesis is not tenable.

see id. supra note 3.g. 269 (per Viscount Simonds). that the court had no residual power to create it. See DEVLIN. in the interest of preserving the court's role as guardian of public morality. a pamphlet that facilitated contact between prostitutes and their customers. 103. HART. but to argue against a conception of what the law ought to be. and that although the court's residual power to create common law offenses should be used only sparingly. at 94." 1°6 1 Shaw had therefore been properly convicted. Lord Reid. 1962 App. Cas. 10 2 As such.1°c Hart's criticism of Devlin's case for the enforcement of morality is in a critical or legislative mode: it is not intended to describe the law as it is. Devlin. See id.10 3 Shaw was charged with the common law offense of "conspiring to corrupt public morals" because he had published The Ladies' Directory. 102. but Devlin's privileging of reactions of indignation and disgust in his approach to criminal law makes one wonder by what mechanism Devlin thought such criticism would ever have any effect. Consider Hart's and Devlin's reactions to the House of Lords's controversial decision in Shaw v. e. 105. at 272. argued that the line between "positive law and positive morality" was unclear. It seems unlikely that Devlin would have rejected Hart's view of the role of criticism in a democracy. consistent with his view of the relationship between criminal law and morality. 10 5 The House of Lords held further that the trial judge was correct to instruct the jury that tending to corrupt morals meant no more than to "lead astray morally. supra note 3. at 281-282. No one can be a democrat who does not accept the first of these. at 285 (per Lord Tucker). Hart insists on the distinction between positive and critical morality. 292 (per Lord Morris).. See id. Hart put forward an argument that casts doubt on the separation of law from morality." Id. 52 criticism and must never be resisted. at 79. see also id. not just for its recogni101. LAW. but no democrat need accept the second. see id. at 275. Devlin. 1°4 There was no substantive offense of corrupting public morals. and that even if the court did have this power. 266-68 (per Viscount Simonds). supra note 70. at 17-24. Finally. 104. . Id. 220 (appeal taken from Eng. if there was any doubt that such a conspiracy was criminally punishable. he held that leaving the question of corrupting public morals to the jury in the way the trial judge had created too much uncertainty. it should not be exercised in the face of "wide differences of opinion . that doubt should be resolved in favor of recognizing the existence of the offense. at 275. at 100. Directorof Public Prosecutions. at 77-81 (focusing on the context of democratic government). See HART. id. The House of Lords held that although there was no substantive offense of "corrupting public morals. as to how far the law ought to punish immoral acts which are not done in the face of the public. held that the offense did not exist at common law. 291-92 (per Lord Morris). 106. at 223. 292-94 (per Lord Hodson). celebrated the decision in Shaw.. in a lecture given before Hart's criticism on this point was published. at 290 (per Lord Tucker). But I want to suggest that even within his debate with Devlin. the sole dissenter. LAW. Hart's position in his debate with Devlin is not inconsistent with his general account of criminal law or with his positivism. see.SMU LAW REVIEW [Vol. 294 (per Lord Hodson).." a conspiracy with that object was an offense at common law.). Id. and there was some doubt about whether the conspiracy Shaw was charged with was an offense at common law.

See supra note 3. The particular value which they sacrificed is the principle of legality which requires criminal offences to be as precisely defined as possible. supra note 70.. See FULLER. This objection is founded on Hart's commitment to "the principle of legality which requires criminal offenses to be as precisely defined as possible. 110. at 12 (citation omitted). see Mewett. supra note 6. HART. that was the arbiter of what was immoral. not the judge. See DEVLIN. virtually any cooperative conduct is criminal if a jury consider it ex post facto to have been immoral. Hart does not rely on Bentham's utilitarian argument that ex post facto punishment is inefficacious. so that it can be known with reasonable certainty beforehand what acts are criminal and what are not.. 10 7 Hart had two objections to the result and the reasoning in Shaw. but since adjudication always contains a zone of uncertainty where judges have to act on moral 107. As a result of Shaw's case."' 10 8 The legalistic objection to Shaw is based on the same sort of values that animated Hart's explanation of the basic concepts of criminal liability: [The House of Lords] seemed willing to pay a high price in terms of the sacrifice of other values for the establishment. at 160. HART. Liberty. For a critique of Shaw directed precisely at the undesirability of punishing immorality as such. See BENTHAM. The decision in Shaw is bad for reasons of substantive morality. at 47. the whole of Law. Rather Hart relies on a notion of procedural fairness more akin to Fuller's argument that ex post facto punishment is repugnant to the law's internal morality. Thus. The second is what I will call the legalistic objection. LAW. so that it can be known beforehand what acts are criminal and what are not. . Hart believes Shaw is badly decided because the decision gives legal force and sanction to legal moralism. HART. supra note 3. and most obvious. that members of society should be able to govern their affairs with confidence that they will not be found guilty of criminal offenses unless they had a reasonable opportunity to avoid criminal liability. but also for its holding that it was ultimately the jury. at 97-100. 109. at 51-62." 10 9 For Hart. Although Hart is a bit hesitant to express this objection to Shaw directly. and Morality is a sustained critique of legal moralism and so may be taken as a critique of the decision in Shaw. LAW. The first. and worse for the degree of uncertainty it introduces. One way of understanding the relationship between these two objections is that the legalistic objection is secondary to the moral objection. PUNISHMENT. Nazi criminal law is still criminal law. Perhaps the nearest counterpart to this in modern European jurisprudence is the idea to be found in German statutes of the Nazi period that anything is punishable if it is deserving of punishment according "to the fundamental conceptions of a penal law and sound popular feeling. supra note 7. at 12. is what I will call the moral objection. But the value animating this criticism is among those animating Hart's account of what criminal law is. it is a criticism based on a vision of what the law ought to be. of the Courts as custos morum. supra note 71.LEGALITY AND MORALITY 1999] tion of the courts' role as custos morum. 110 so if this is a criticism. supra note 3. 108.

the legalistic objection would not be decisive on its own. HART. Id. at 62-72. David Dyzenhaus suggested to me that the two objections might be related in this way. the private counterparts of the public values of legality. He therefore draws a distinction between formal and material values in morality: In moral relationships with others the individual sees questions of conduct from an impersonal point of view and applies general rules impartially to himself and to others. and the like. IV. rather than directly through an analysis of the approach itself. LAW. . But the preservation of these formal values is not. Indeed. at 72. but even where it does it contributes nothing to the survival of the animating spirit and formal values of social morality and may 11 4 do much to harm them.SMU LAW REVIEW [Vol. 52 grounds. 113. on the same foundations as the legalistic objection.. For Hart's recognition of the role of uncertainty in adjudication. and consequently a sense of what is good for those societies. 112. These are universal virtues3 and indeed constitute the specifically 11 moral attitude to conduct. Id. Hart argues. supra note 3."1 But this account of the relationship between the two objections is only partially satisfactory because the moral objection rests. supra note 1. supra note 1. at least in part. see HART.. at 71. he exerts self-discipline and control in adapting his conduct to a system of reciprocal claims. at 70. rape. so to speak. rather. A departure from the basic principles of criminal law that Hart outlines would be inappropriate for a society of human agents because it would damage their ability to act as moral agents. 115. the moral objection to Shaw is not simply utilitarian. what Devlin has in mind. Devlin simply wants to punish mere departures from a moral code. Hart cannot very well deny that the criminal law does and should enforce morality when it punishes theft. The formal values of morality are. but shares with the legalistic objection a sense of the nature of human societies. supra note 71. . Thus. at 123-32 and HART. if only to establish some points of reference for the discussion that 111. ESSAYS IN JURISPRUDENCE. CRIMINAL LAW AND HART'S POSITIVISM My purpose in this Article is to describe and criticize Hart's approach to jurisprudence indirectly through his writings on criminal law. But at this point a brief sketch of my understanding of The Concept of Law" 5 is in order. 114. 112 but he wants to deny that the criminal law should enforce morality when the conduct sanctioned is not harmful. murder. Devlin's position undermines rather than supports the formal values of morality: The use of legal punishment to freeze into immobility the morality dominant at a particular time in a society's existence may possibly succeed. See HART.

is better understood as consisting of a system of rules. 122. which provide remedies for these defects.. He argues that this model fails to explain two central features of the law. at 96. Id. at 29-44 (describing this argument as a hermeneutic approach to understanding law because it seeks to take on the perspective of the person subject to the law). . See id. and it is these secondary rules that "convert the regime of primary rules into what is indisputably a legal system. at 94. or how legal authority can persist.' 121 Primary rules are those that impose the basic obligations that are necessary whenever human beings live together. A habit "is merely a fact about the observable behaviour of most of [a] group. at 56. supra note 2. MORALITY. at 26-49. For discussions of some of the difficulties in Hart's categorization of rules as primary or secondary. the model attributes too much importance to the idea that a habit of obedience is sufficient to explain the continuity and persistence of legal authority.. 1977). 119. supra note 1.M..M. see JOSEPH RAZ. Many are enabling rather than penal. at 103-06.1 17 Second. See HART. 121.. supra note 1. we cannot explain how legal authority can be transmitted from one group of persons to another. we can understand the procedures for the 1 20 continuity and the persistence of legal authority. First is the 116. 117. not all laws amount to prohibitions or punishments. and that this should display itself in criticism (including self-criticism). but must have an internal aspect. They are often uncertain in their application. For other sketches."119 If law is merely a habit of obedience. basic ideas of gift and contract) under the rubric of primary rules. and they cannot efficiently maintain themselves. 123. such that the members of the group feel normatively bound to follow the law. 1 16 Hart's initial target in The Concept of Law is the model of law as orders backed by threats. See HART.1 23 Primary rules must therefore be supplemented by secondary rules. Id. more particularly. at 51-66. as when a law outlasts the society than enacted it.g. and in acknowledgements that such criticism and demands are justified . But the presence of basic enabling rules even in the absence of public secondary rules (e. the law merchant) is not unknown."118 Behavior in accordance with law cannot be merely habitual in this sense. Hart's Philosophy of Law. Hacker. Id. demands for conformity. they often have a static character.' 2 2 But primary rules have certain flaws. as when an outgoing legislature is replaced by an incoming legislature. Hacker & J. It is not completely clear why Hart does not include basic enabling rules (e. See id. see MACCORMICK. at 92-93.S.S. Id. see also MACCORMICK.1999] LEGALITY AND MORALITY follows. law centers around "[t]he union of primary and secondary rules. supra note 1. at 91. supra note 2.. Law. then. But if law is a body of rules.g. Raz eds. at 20-28 and P. 120. in LAw. supra note 2."' 24 There are three types of secondary rules. AND SOCIETY 1 (P. THE AUTHORITY OF LAW 177-79 (1979) and MACCORMICK. First. "What is necessary is that there should be a critical reflective attitude to certain patterns of behaviour as a common standard. 124. . See HART. 118. He sees these basic enabling rules as analogous to the secondary rules of change. at 99. at 57.

see also id."'1 Finally. supra note 2.. The analysis of the moral quality of the law is another matter. at 185-86. 133. 130.' 32 Although the legal scholar may take an internal point of view for the purpose of analyzing any given system of law. Id." HART. at 96. this analysis is presented to explain what constitutes law "in order to elucidate features distinctive of law as a means of social control. This is particularly true of the rules of adjudication. Hart recognizes that rules of recognition and change may be subject to similar uncertainties. in the light of circumstances. supra note 1. on a particular occasion. rules of change specify the methods by which primary rules may be authoritatively altered. law is not just a set of rules but a set of rules with an open texture. 127. supra note 116. a primary rule has been 26 broken. See id. at 63. 128 But in the small area where the result is not evident. Id. Id.SMU LAW REVIEW [Vol. ESSAYS IN JURISPRUDENCE. at 140-45."1 30 not to assert that any particular legal rule or system of legal rules is desirable or morally valid. HART. supra note 1. 128. Id. 129. at 155."). at 122.. See MACCORMICK. 132.. Hart's analysis is positivist in this sense: he denies "that between law and morality there is a connection which is in some sense 'necessary"' t3 ' and asserts "that it is in no sense a necessary truth that laws reproduce or satisfy certain demands of morality. supra note 6. rules of adjudication "empower[] individuals to make authoritative determinations of the question whether. at 134."1 Although the secondary rules have the function of repairing the defects in primary rules. they are not themselves self-applying or fully determinate. he or she neither endorses nor criticizes that law while doing the analysis. at 268 ("[Tlhough there are many different contingent connections between law and morality there are no necessary conceptual connections between the content of law and morality . 127 Because even secondary rules always leave open areas for choice. at 24-25.. at 135. Third. he treats these uncertainties as instances of "the pathology and embryology of legal systems. However. Hart described this contrast as the difference between "a core of settled meaning . the law "must be left to be developed by courts or officials striking a balance. at 123. supra note 71.] a penumbra of debatable cases in which words are neither obviously applicable nor obviously ruled out. Elsewhere." 1 25 Second. 131. HART. between competing interests which vary in 29 weight from case to case. 156-57. 52 rule of recognition. at 30-40 (describing and criticizing this feature of Hart's method). see also FULLER. which "will specify some feature or features possession of which by a suggested rule is taken as a conclusive affirmative indication that it is a rule of the group to be supported by the social pressure it exerts. Id. ." rather than as an instance of the systematic uncertainty that afflicts rules of adjudication. 133 Hart believes that the separation thesis flows from his account of what 125. 126. "[I]n the vast majority of decided cases there is very little doubt" about the legally correct result. Id.

but as we have seen. 139. and his critique of the decision in Shaw both rest on the notion that the law is. See id. supra note 71. at 207. 9-11 (1985). 144. at 210-11. to criticize. See id. the decision to punish those whose behavior was grossly immoral but not illegal under a former regime should be taken in full awareness that another moral principle. 135. Hart argues. the separation of law and morals enables persons to retain a sharp critical attitude in determining whether to obey. See id. L. judicial decisions. 136 On the one hand. 142. the claim that morally iniquitous laws are not really laws at all "may grossly oversimplify the variety of moral issues to which they give rise.' 14 1 In either case. Id. In his analysis of criminal law and in his debate with Devlin. he or she must be able to separate the question of the existence of a law from the question of its moral validity. 141. see also HART. supra note 3. . "nulla poena sine lege. 1. ESSAYS IN JURISPRUDENCE. if the law is assumed to embody some morally valid principles. U. 136.19991 LEGALITY AND MORALITY law is. at 12.1 38 On the other hand. See id. at 211-12. 137. at 8-12. "According to my theory. 13 5 Failing to make this separation may lead to one of two related errors. 134. See HART. 138. supra note 1. at 269. See id. but also that it has distinct advantages for moral reasoning. A Moralistic Case for A-moralistic Law?. supra note 1. Each of these projects has an important critical aspect to it. see also HART. legislation. a system for governing choos144 ing agents rather than a mere system of incentives or of state power. 140 "A case of retroactive punishment should not be made to look like an ordinary case of punishment for an act illegal at the time. PUNISHMENT. the person may assume that the law itself is morally valid. 140. 143. and ought to be. 72-75. Hart fails to respect the separation thesis as expressed in this methodological form." is being violated. be different from the methods used to determine the moral quality of the law. 137 This danger is particularly acute since the fact that a rule is a law is supposed to give one a reason to act in accordance with it. 20 VAL. or to disobey 142 existing laws. supra note 1. each also invokes legal values that are very closely connected with Hart's jurisprudential project." HART. Id. Another way to express the separation thesis is that the methods to be used in determining whether something is "law" should.g. See HART. at 207-12. See supra note 103 and accompanying text. 143 Hart's account of the criminal law will be consistent with the separation thesis to the extent that it invokes the "demands of morality" only where the positive law invokes them. in general. 134 Hart argues that if a person is to remain or to become a critical moral agent. the existence and content of the law can be identified by reference to the social sources of the law (e. His analysis of what the criminal law is and ought to be. at 211. at 207-08. REV. Neil MacCormick. social customs) without reference to morality except where the law thus identified has itself incorporated moral criteria for the identification of the law. '139 For example.

First. But this notion of fairness. See supra Part 11. I identified three major features of Hart's theory of criminal law. That is. 52 In part II above. this response would require Hart to engage in a more explicit normative defense of his synthesis than he would like. See supra Part III. and third. but that this value was supported by ideas of legality which in turn were related to Hart's conception of how moral146 ity operates in a democratic society. Similarly. But. in that it uses the same tools for both descriptive and normative purposes. This response would be extremely plausible. he might give up the claim that his criminal law project is a descriptive one and argue that its purpose is entirely normative: to justify and defend the view that criminal law can and should coherently combine utilitarian and retributive features. i. no one should be held criminally accountable for actions or consequences that he or she could not have helped. even "objective" fault standards contain a "subjective" or agent-related component. Indeed.e. was treated less as a brute moral fact about existing legal systems than as a normatively desirable feature. in that it would require Hart to repudiate very little of his criminal law writing and would make it consistent with his position in the Hart-Devlin debate. Hart might have two responses to these observations. because Hart's criminal law writing can be understood as having a descriptive as well as a normative or critical element. itself resting on the importance of preserving individual powers of decision-making in a legal order. excuses are available even where disallowing them might be justified on a purely utilitarian view. in a broad sense.SMU LAW REVIEW [Vol. First. 146. this idea plays a dual role in that writing. The reason Hart cannot do this is contained in a brief passage in The Concept of Law: The idea that the substantive rules of the criminal law have as their function (and. in Part III. It is very hard to resist the conclusion that Hart's criminal law project does not respect the separation thesis. I argued that the central value in Hart's critique of Devlin's legal moralism was that the law should be hesitant to use the criminal sanction in the absence of any evidence that the behavior sanctioned is harmful. . the idea that law as a system of rules is not a mere system of incentives or goads but a set of reasons addressed to choosing agents appears in Hart's criminal law writing as a desirable feature of a legal system and in his jurisprudential writing as part of the definition of a legal system. second. 14 5 Hart explained all of these restrictions on criminal liability as consequences of a very basic notion of fairness. But. cannot be eliminated without jettisoning cardinal distinctions and obscuring the specific 145. their meaning) the guidance not merely of officials operating a system of penalties. more fundamentally. as we saw. punishment is restricted to offenders.. but of ordinary citizens in the activities of non-official life. the values that Hart invokes in his analysis of criminal law and in his debate with Devlin are closely related to the analytical tools he uses in his positive jurisprudence.

151. supra note 1. because it would not be a system of 15 rules." Id. I do not disagree with MacCormick's conclusion. That is and has to be one of the messages emanating from a hermeneutic study like Hart's of laws as special social rules. 152. but would be no legal system at all. a system that did not guide conduct in this way would not merely be a bad legal system."'1 53 He complains that Dworkin incorrectly labels him a plain fact positivist and asserts instead that he is a "soft 147. that is. at 94-95. at 250. at 87. Id. as guides to and facilitators of conduct. is not the same as a tax on a course of conduct. that Hart would not want to give up the claim that his analysis of criminal law is. though both involve directions to officials to inflict the same money loss. MacCormick draws a different conclusion from the observation that for Hart law consists of certain types of rules. 149 and the function of the rule of recognition as a remedy for the uncertainty in the application of primary rulest50 all depend on this notion of law as rules. It seems that. not only as a desirable feature of a legal order. See HART. Although he agrees with Hart that "criteria of legal validity neither are identical with nor include criteria of moral value. I suggest. at least in part. in a positivist mode. such as a fine. but suggest that it does not go far enough: for Hart.1 47 The idea of law as something that is addressed to citizens in their capacity as agents is central to Hart. not be a legal system. because to give up that claim would jeopardize too many of the basic distinctions on which his positivism rests. ' I assume. namely that legal standards and moral standards both belong within the genus of practical reasons for action.LEGALITY AND MORALITY 1999] character of law as a means of social control. he says. What differentiates these ideas is that the first involves. a legal system that does not consist of rules that have the characteristics Hart identifies would. The distinction between law and orders backed by threats. on Hart's view. at 27-33. Compare HART. more promising response is contained in the 1994 "Postscript" to The Concept of Law. supra note 2. an offence or breach of duty in the form of a violation of a rule to set up to guide the conduct of ordinary citizens. 149. at 161. supra note 1. HART. at 39. 150. but also as a tool for distinguishing a legal order from a nonlegal order. supra note 1." MACCORMICK. as the second does not. PUNISHMENT. . at 23 with HART. Dealing at length with Dworkin's criticisms of his jurisprudential project. See id." which "acknowledge[s] that the rule of recognition may incorporate as criteria of legal validity conformity with moral principles or substantive values. at 39 (emphasis added). should consist exclusively of the specific kind[s] of plain fact which he [Dworkin] calls 'pedigree' matters and which concern the manner and form of law-creation or adoption. In Hart's system. "it seems simply inconceivable that appeals to law-even iniquitous law-can ever shed their moral load. A second. 153. 148. . A punishment for a crime. See id. Hart distinguishes between "plain-fact positivism. supra note 1." 152 and "soft positivism. supra note 3." which holds "that the criteria of legal validity . whatever be their weight as such.. 148 the analysis of the characteristics of obligation." he argues that "there is at least one necessary conceptual link between the legal and the moral. therefore. HART.

INCLUSIVE LEGAL POSITIVISM 82 (1994). it is doubtful whether a criminal code consisting only of an injunction to punish immoral behavior would count as law for Hart. H. Legal Theory and the Obligation of a Judge: The HartiDworkin Debate. For example. is law. Between Utility and Rights. Director of Public Prosecutions. even for Hart. of course. 1983).."' 5 6 But Hart rejects this argument as well. For a discussion of whether the South African legal system under apartheid is such a counterexample.' 154. LAW's EMPIRE 124 (1986). 223 (appeal taken from Eng. and so violates the separation thesis: If a social practice makes morality systematically relevant to legal issues . .. Dworkin uses the term "soft conventionalism" to describe a similar position. Dworkin argues. Hart. Cas. The counterexample to this claim would have to be a system that did not recognize any legal values but was nonetheless identifiable as a legal system. See RONALD DWORKIN. at 250-54. though I would express the point slightly differently from Dworkin: where legal values are themselves used to identify what law is. 1983). But. in RONALD DWORKIN AND CONTEMPORARY JURISPRUDENCE 3 (Marshall Cohen ed. 155. in RONALD DWORKIN AND CONTEMPORARY JURISPRUDENCE 214 (Marshall Cohen ed.. So the 55 promised ontological separation of law from morals fails. to make the objective standing of propositions of law independent of any controversial theory either of meta-ethics or of moral ontology. HART. 52 positivist. then the truth of propositions of law will systematically depend upon the truth of propositions of morality. 156. See id. 249 (Marshall Cohen ed. The problem this creates for the positivist. in the truth of the latter. see DAVID DYZENHAUS. saying that it "exaggerate[s] both the degree of certainty which a consistent positivist must attribute to a body of legal standards and the uncertainty which will result if the criteria of legal validity include conformity with specific moral principles or values. supra note 6. in RONALD DWORKIN AND CONTEMPORARY JURISPRUDENCE 247. at 154. 158." See WILFRED WALUCHOW. 159. is rather to suggest that soft positivism implicitly gives up the separation thesis. A different but related sort of counterexample is envisaged by Fuller: "Does Hart mean to assert that history does in fact afford significant examples of regimes that have combined a faithful adherence to the internal morality of law with a brutal indifference to justice and human welfare?" FULLER. and of my discussion of Hart's approach to criminal law." See E. and on this occasion neither of them used the term "soft positivism. is that it undermines the positivist "ambition. . The truth of the former will consist at least partially. Ronald Dworkin. it is virtually impossible to avoid some sort of connection between what law is and what law ought to be' 58 because something which purports to be law but is extremely defective from the point of view of legality will not count 59 as law. at 250. right to disavow this degree of certainty.A..L. supra note 155. although the decision in Shaw v. the point of Dworkin's critique. Dworkin is here responding both to Hart and to Soper. Dworkin.). Waluchow defines and defends an "inclusive positivism" which is similar if not identical to the "soft positivism" that Hart adopts in the "Postscript.."'1 57 Hart is. Elsewhere.SMU LAW REVIEW [Vol. 1983). A Reply. at 251. I question whether such an example is conceivable for Hart. . in that it admits too much morality into the analysis of what law is. supra note 1. Philip Soper. 1962 App."' 54 Dworkin also contends that this type of positivism is too soft to count as positivism at all. 157. HARD CASES IN WICKED LEGAL SYSTEMS (1991)..

But. as in Hart's account of criminal liability. at 219-23. In Hart's case.. A third possible response. . to adopt such laws would often war with other aims which law should cherish. the idea of law as a system of rules providing some degree of certainty but accommodating other values appears as both an explanatory device and as something to be desired. at 251-52. supra note 122. at 184-86. we may accept it. 163.. supra note 122. 163 but by conceiving of law as something that addresses itself to choosing agents. we give legality more content than that required for a merely efficacious law. RAZ. It is unfortunately compatible with very great iniquity. The underlying question here concerns the degree or extent of uncertainty which a legal system can tolerate if it is to make any significant advance from a decentralized regime of custom-type rules in providing generally reliable and determinate guides to conduct iden160 tifiable in advance. at 207. supra note 1. because Raz's view that the goodness of legality is purely instrumental is closely bound up with his rejection of soft positivism. '162 But Hart sees legality in this sense in its minimal procedural sense. Hart shifts quickly and easily to the very values I have argued underlie his account of criminal law: [E]ven if laws could be framed that could settle in advance all possible questions that could arise about their meaning. See RAZ. supra note 1. The response Hart actually offered to Fuller's critique was to admit Fuller's point and to minimize its impact. supra note 122. CONCLUSION In this Article. in his own analysis of criminal law. Once again. in defending the possibility of soft positivism. HART. Soft positivism does not separate these two projects as sharply as Hart's more uncompromising statements of the separation the16 1 sis would imply. V. which need only control conduct. namely the difficulty of identifying an actual regime in which legality was invoked for purely evil purposes. This response seems to be vulnerable to a version of Fuller's argument cited in note 158. at 42-43..1999] LEGALITY AND MORALITY Indeed. It is true that the morality of legality is not equivalent to the full range of goods and virtues that a social order might possess. although his advocacy of a utilitarian General Justifying Aim of 160. supra. a form of efficiency only. HART.. as I have suggested. related to the second. See RAz. 161. Hart would be unlikely to invoke Raz's argument on this point.. supra note 6.. would be to argue that the "good- ness" of legality is an instrumental type of goodness. in any event. If the requirements of legality are all that is meant by "a necessary connection between law and morality. at 225-26. See FULLER. I have suggested that Hart's analysis of criminal law is a particularly good illustration of the central weakness of positivist projects: the positivist's claim that the positive identification of law is separate from the moral validity of law is never quite believable. because the tools used to identify law and to assess law tend to overlap. 162. rather than in the somewhat richer sense intended by Fuller and implicit. as Hart did.

. both the quality of the procedure followed and the content of the law itself are always open to criticism. I think. HART. supra note 3. in that both depend on a concept of law as a rule-based system that addresses itself to a moral agent. but not so close as to entail the dangers of blind acceptance or analytical incoherence that Hart fears. both of which have value in a system of criminal justice: utilitarianism and retributivism. find a "middle way.' 64 we need not say that every law or legal system we disapprove of on moral or other normative grounds is not really law. at 84. PUNISHMENT. 46 U. HANS KEL- 250-58 (1997). Even if we are prepared to say that some systems of positive law are so defective on moral grounds that they do not qualify as law. supra note 3. illustrates this polarity. 168. his advocacy of certain criteria of justice as limits on the operation of the General Justifying Aim in the distribution of punishment is not. but also gives us a reason (not necessarily a decisive reason) to obey it. rather than completely separate projects. TORONTO L. HART. LEGALITY AND LEGITIMACY: CARL SCHMITT. 165. at 17. The relationship between the analysis of what the law is and advocacy of what the law ought to be is closer than the separation thesis admits. 1 have argued above that the possibility of saying this is implicit in Hart's own work. See DAVID DYZENHAUS. 167. Indeed. 165-80 (1996) (book review). Hart's approach to criminal law is almost ideally suited to play both a critical and a descriptive role. Any satisfactory account of modern criminal law must. supra note 71.. The fact that a law has been enacted through an authoritative procedure not only enables us to identify it as law.. And Hart's own work. HART. David Dyzenhaus. 52 punishment is reasonably well separated from his views about what the law positively states. retribution" 168 because only such an account will be able to explain and justify 164. SEN AND HERMANN HELLER IN WEIMAR . 166. At the same time. though it is unlikely that he would have accepted this view. in that it is an undogmatic attempt to find room for two opposed principles. But abandonment of the separation thesis in its strong form need not mean abandonment of a critical approach to positive law. most obviously in his uncertainty about the status of his criminal law project. The Legitimacy of Legality. between a purely forward-looking scheme of social hygiene and . Hart's reluctance to give up the separation thesis in the face of this overlap is undoubtedly due to his strongly held belief that the separation of law and morality is vital to the maintenance of a critical attitude towards the law. LAW. J. and this criticism may in turn produce doubts about the legitimacy of the authority which promulgated the law and thereby call into question its positive authority.. at 233. 165 This is a process in which "law as it is and law as it ought to be"'1 66 or "positive and critical morality"'167 are two poles on a continuum.129. rather than as a set of incentives to good behavior.SMU LAW REVIEW [Vol. ESSAYS IN JURISPRUDENCE. His account of what law is-an open-textured system of rules-and his account of what criminal law should be-a guide to choosing agents-are intimately connected.

Simester & A. HARM AND CULPABILITY (A. Contemporary accounts of criminal law tend to over-emphasize its harm-controlling aspects at the expense of its agency-structuring aspects. 1996). supra note 7. FEINBERG.. 169 The enduring value of Hart's analysis of criminal liability consists in the resources it continues to supply to such projects. e.P. at 211-60 (attempting to articulate harm and agency in criminal law as part of a Hegelian whole).H. 169. Smith eds. . See also BRUJDNER. supra note 8.T.g..1999] LEGALITY AND MORALITY both the harm-oriented and agency-oriented aspects of criminal law. See.

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